[Congressional Record Volume 154, Number 128 (Wednesday, July 30, 2008)]
[Senate]
[Pages S7768-S7769]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




            AMERICANS WITH DISABILITIES ACT RESTORATION ACT

  Mr. LEAHY. Mr. President, this past weekend marked the 19th 
anniversary of the passage of the Americans with Disabilities Act, ADA, 
one of the Nation's most critical and effective civil rights laws. It 
is fitting that as we celebrate its passage, we reflect on the progress 
we have made in expanding possibilities for Americans with disabilities 
and the challenges that still remain.
  We passed the ADA in recognition that the bedrock principles of human 
dignity and equal opportunity require all Americans to be judged on 
their individual merits and not on the prejudices of others. This law 
promised generations of Americans the opportunity to leave their mark 
on a country that had only years before denied them full participation. 
I, like many of my colleagues, supported this historic act. I hoped it 
would serve as a vital tool against the barriers that had long excluded 
persons with disabilities from fully participating in society.
  By any reasonable measure, the ADA has been a success. Today, persons 
with disabilities enjoy rights many of us have long taken for granted. 
Now they

[[Page S7769]]

have access to public transportation built to accommodate people in 
wheelchairs. They have the ability to stay in hotels, travel, and enter 
schools and places of entertainment equipped for their needs. Indeed, 
almost every office building in America is fully accessible to them. 
Thus, the enactment of the ADA transformed our country and we are a 
better Nation because of it.
  Despite these significant advances, recent decisions from the Supreme 
Court and lower courts attempt to erode the ADA's protections and 
threaten to turn back the clock on our progress. I am particularly 
disturbed by rulings that have narrowed the ADA in ways we never 
intended. Rather than broadly interpreting the ADA's mandate, as we 
intended, courts have repeatedly interpreted that law to embody a 
``strict and demanding'' standard for determining who qualifies as an 
individual with a disability. These narrow rulings ensure that the 
persons we intended to shield, including those with severe illnesses, 
like epilepsy and multiple sclerosis, are no longer protected. As a 
consequence, millions of Americans who suffer discrimination are now 
excluded from ADA protection.
  A few years ago, a Federal judge in Vermont's neighboring State of 
New Hampshire ruled that a woman with breast cancer was not 
sufficiently disabled to be protected by the ADA. Court rulings 
contrary to Congress's intent for the ADA are not limited to the New 
England States. Last year, a panel of judges on the U.S. Court of 
Appeals for the Eleventh Circuit unanimously ruled that even mental 
retardation did not constitute a sufficient disability under the ADA.
  The message sent by these rulings is as unfortunate as it is 
undeniable: the courts no longer consider certain persons ``disabled 
enough'' to be protected. That means an employer could fire or refuse 
to hire a qualified worker on the basis of his or her disability, and 
defend that action in court on the grounds that the worker was not 
``disabled enough'' to be protected under law.
  In addition, the legislative history is crystal clear. Congress 
intended the ADA to protect all persons without regard to mitigating 
circumstances. Indeed, the Senate committee report on the ADA expressly 
stated ``[w]hether a person has a disability should be assessed without 
regard to the availability of mitigating measures, such as reasonable 
accommodations or auxiliary aids.'' Despite this clear intent, courts 
have ruled that people with disabilities who take medication or use 
assistive devices should not be considered disabled.
  I am particularly concerned that these rulings will undermine the 
rights of thousands of veterans with disabilities who, upon returning 
from the war, will enter the civilian workforce to support their 
families. Many of these veterans have disabilities, including post-
traumatic stress syndrome, that may be controlled with medication. If 
any of them suffer job discrimination, we must make sure they will have 
a remedy.
  Equally disturbing is that many of these cases can lead all Americans 
into what Senator Harkin has aptly described as a legal catch-22:

       People with serious health conditions [] who are fortunate 
     to find treatments that make them more capable and 
     independent and, thus, more able to work may find that they 
     are no longer protected by the ADA . . . . On the other hand, 
     if they stop their medication or stop using an assistive 
     device, they will be considered a person with a disability 
     under the ADA but they won't be qualified for the job.

  We must act to remedy these erroneous court decisions. Last month, 
the House overwhelmingly passed the Americans with Disabilities Act 
Restoration Act. Now it is the Senate's turn to respond. This 
legislation would reverse these flawed decisions and restore the 
original congressional intent of the ADA. First, the bill would clarify 
Congress's purpose to reinstate a broad scope of protection for a range 
of persons with disabilities under the ADA. Second, the legislation 
would modify findings in the ADA that have been used by courts to 
narrowly interpret what constitutes a ``disability.'' Third, the bill 
would lower the burden of proving that one is ``disabled enough'' to 
qualify for coverage.
  This long overdue legislation has ample support from both disability 
groups and business interests. I hope this bipartisan bill does not 
fall victim to the petty partisan obstruction that has prevented 
passage of other civil rights measures in this Congress that had broad 
bipartisan support, like the Lilly Ledbetter Fair Pay Act. While 
unprecedented obstruction tactics have led Senate Republicans to stall 
one bill after another on the Senate floor, it is well past time for us 
to turn the page on partisan tactics designed to thwart critical civil 
rights bills.
  Indeed, our heritage of freedom and our continued march towards 
perfecting our Union, should remind us all that civil rights 
legislation holds a unique place in this institution. These bills bring 
us closer to fulfilling the promises engrained in our founding charters 
of establishing freedom and equality for all Americans. Thus, they 
should be held to a higher standard than other bills.
  Time has shown the ADA to have been one of our Nation's most 
effective tools in combating discrimination. Its continued 
effectiveness is important to ensure that the great progress we have 
made in widening the doors of opportunity for all Americans continues 
in the future.
  We have before us a historic opportunity to restore the ADA's 
original intent and reclaim the basic rights it extended to persons 
with disabilities. I was proud to support the ADA in the 101st 
Congress, and I am pleased to support this year's bill as it moves 
forward. I hope this bill will be promptly passed by the Senate and 
signed into law by the President.

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